This paper discusses tino rangatiratanga
which
is central to a Maori understanding of the Treaty of Waitangi. It
refers
toMaori control of all things Maori - Maori
sovereignty.
Tino
rangatiratanga stands in contrast to kawanatangawhich
Maori
have always seen as giving only limited power to the Crown.
However
history has seen the displacement of tino rangatiratanga by a form of
kawanatanga
which assumes that the Crown has absolute authority over all people and
all matters in this land.The present National Government like its Labour
predecessor
has no place for the recognition of tino rangatiratanga in its
policies.
Both have acted on the mistaken assumption that Maori ceded their
sovereignty.
The Courts have reflected this view, interpreting the Treaty in a way
that
upholds Crown sovereignty and rules out tino rangatiratanga The
Waitangi
Tribunal has found itself bound by the Court of Appeal, with its
findings
now based on a cession by Maori of their sovereignty. Its powers have
also
been curtailed by government. Labour redefined the Treaty with its
'Principles
of Crown Action on the Treaty of Waitangi. National went further in
seeking
to ensure these principles were in accordance with its policies. The Ka
Awatea policy has been dropped. The Sealord deal has been found sadly
lacking.
Now the government proposes implementing a policy for settling all
Treaty
claims, that is a further denial of tino rangatiratanga.The policies of both National and
Labour with
their
failure to recognise tino rangatiratanga have led to the continued
subordination
of Maori. This is being increasingly challenged by the assertion
of
tino rangatiratanga, which continues to be the Treaty issue for the
1990's.

IntroductionIn 1989 the Conference of the Methodist Church
passed
a resolution relating to 'tino rangatiratanga'. The resolution was
in two
parts. The first expressed "full and unqualified support for 'te
tino rangatiratanga
o o ratou wenua o ratou kainga me o ratou taonga katoa' o nga iwi Maori
as expressed in Article 2 of the Te Tiriti o Waitangi (Maori Version)".
The second expressed the concern of the Conference at the continued
erosion
of te tino rangatiratanga by successive governments and the Courts
since
1840. Leaders of the Churches in their 'Statement for 1990' said
that they
accepted the challenge to work in ways which honour the Treaty,
including recognition that Maori possess tino rangatiratanga.
The Joint Methodist-Presbyterian
Public Questions Committee agreed to make consideration of the meaning
and significance of tino rangatiratanga a priority in 1990. It has been
a priority for its bicultural work group.The 1993 General Assembly of the Presbyterian
Church,
affirmed the continuing work of the Committee on te tino rangatiratanga
and recommended that parishes continue to address and discuss this
issue. The original paper appeared in September 1990. It
was
updated in January 1992. Much has happened in this area in the past
eighteen
months making a further update desirable. In order to accommodate new
material
without adding unduly to the length of the paper, some of the earlier
material
has now been presented in summary form.

The
Meaning of Tino
RangatiratangaThe word rangatiratanga comes form the word rangatira
which
is most often translated as chief. Rangatiratangawhich
refers
to chieftainship, approximates to oversight, responsibility, authority,
control, sovereignty. It is a word used in the Lord's prayer for
kingdom,
which is a word very close in meaning to sovereignty. The word tino
is
an intensive or superlative, meaning variously: very, full, total,
absolute.
So tino rangatiratanga approximates to total control, complete
responsibility,
full authority, absolute sovereignty.The term tino rangatiratanga was used inthe
Declaration of Independence of 1835 which recognised Nu Tireni
(New
Zealand) to be a sovereign and independent nation where power and
authority
rested with the rangatira. The English version of that declaration
stated
that "all sovereign power and authority resided entirely and
exclusively"
in the rangatira.Te Tiriti o Waitangi of 1840 also used the
term
tino rangatiratanga with the promise that it would be guaranteed to
Maori.
In the words of the English translation of the Maori version of the
Treaty,
the Queen agreed to the rangatira and the iwi retaining full
chieftainship
(tino rangatiratanga) of their lands, their villages and all their
taonga
including the Maori way of life.

Rangatiratanga
and KawanatangaThe Maori version of the Treaty
of Waitangi
clearly confirmed tino rangatiratanga or Maori sovereignty over
all
things Maori (Article 2). It granted to the Crown, kawanatanga, a
word
which is a transliteration of the word governorship (Article 1). Maori
would have been in no doubt as to the meaning of rangatiratanga and, on
the basis of its being guaranteed in the Treaty, willing to sign it. In
1840 Maori had no desire and no need to give away their tino
rangatiratanga.
What they gave to the Crown was limited power, to control new
settlers. That power was kawanatanga. In retaining tino
rangatiratanga it was clear
to Maori that their ability to control their own destiny was not
diminished.
In granting kawanatanga they saw that they would benefit from limited
controlled
immigration and the introduction of new technology (Article 3) of the
Treaty
did not make Maori into British subjects. It recognised the
continuing
right of Maori to enjoy their own laws, customs and lifestyle, just as
British citizens enjoyed their own. This was reinforced in (Article
4)(unwritten)
which stated that the Governor would protect Maori ritenga or custom.However, theEnglish text
of the Treaty which successive governments have relied on to this
day for
their legitimacy,
or their own unilateral proclamation of sovereignty, assumes that
Maori
gave away all their sovereign power to the Crown. Such an idea would
never
have been acceptable to Maori. 200,000 Maori had no need whatever
to
concede any power to just 2,000 settlers. They signed the Maori
text
because they knew what it meant. Their tino rangatiratanga was retained.On the incorrect assumption that Maori ceded
sovereignty
(tino rangatiratanga), successive governments have set about
usurping
tino rangatiratanga. The denial of the right of tino rangatiratanga
since 1840 has been expressed in legislation, decisions of the
Courts,
and most recently in attempts to rewrite the Treaty in the form of
principles.

Tino
Rangatiratanga and the Labour Government 1984-1990The coming to power of the Labour Government in
1984
coincided with a growing call for political and economic autonomy by
Maori.
This aspiration required the return to Maori
of
resources of land, forests, fisheries, and waterways unjustly acquired
by successive governments in violation of the Treaty. This
resulted
in a clash with Rogernomics which envisaged the transfer
of significant resources of the state to the private sector. The
assets
to be transferred were often the very ones Maori had a justifiable
claim
to. The Crown's claim to absolute sovereignty was on collision course
with
the Maori desire for restoration of their tino rangatiratanga.The result was that Labour distanced itself from
its
earlier strong Treaty rhetoric. When Maori objections to the transfer
of state assets to the private sector were ignored, Maori went to
the
courts. This resulted in the government backing right off any
commitment
to the Treaty. Eventually it repackaged the Treaty in the form of
'Principles
for Crown Action on the Treaty of Waitangi'. This unilateral action was
designed
to ensure the supremacy of Crown sovereignty. The talk was now of the
symbolic
settlement of Treaty issues with no place for tino rangatiratangaAt the Waitangi Day celebration in 1990 the
Bishop of
Aotearoa made it clear that Maori grievances remained unaddressed. This
was followed by the call from Te Runanga Whakawhanaunga I Nga Hahi at
the
October general election not to vote but instead to sign a tino
rangatiratanga
register. Te Runanga also called for a constitutional conference to
work
towards a Treaty based constitution. This suggestion was dismissed by
both
the Prime Minister and Leader of the Opposition.

Tino
Rangatiratanga and the National Government 1990-1993The National Government came to power with a weak
recognition
of the Treaty as New Zealand's founding document, but with policies
that
were deeply anti-Treaty. Like Labour it adhered to the view that Maori
tino rangatiratanga would not be recognised. All sovereignty was to
remain
with the Crown.Upon taking office the Minister of Maori Affairs,
Winston
Peters commissioned the 'Ka Awatea' report which concerned itself with
Maori socio-economic disadvantage, dealing with the effects and not the
causes of 150 years of colonisation upon Maori. Maori were to be left
dependent
on the goodwill of the government. The issue of tino rangatiratanga was
ignored. Nevertheless the report received widespread support amongst
Maori,
being seen as a step in the right direction rather than the final
solution,
and preferable to the market policies that were the alternative.'Ka Awatea' did not have an easy ride through
cabinet
as it promoted a heavily interventionist approach to Maori
socioeconomic
disadvantage at a time when those at the economic helm were seeking to
have government withdraw from its social and economic responsibilities
to the disadvantaged. The report's main points of principle survived,
but
the details of the program were left vague enough for National to
proceed
with plans to mainstream Maori Affairs and devolve responsibilities but
with few resources and powers, to approved organisations.'Ka Awatea' envisaged programs designed to meet
the needs
of Maori education, health, employment and economic development. This
did
not happen. With the dumping of Winston Peters by the Prime Minister,
significant
aspects of 'Ka Awatea' were also dropped. Refusal to reinstate Winston
Peters in response to Maori protests was taken to be a sign that the
Prime
Minister did not want to take Maori seriously and would listen to them
only on a selective basis.A Ministry of Maori Development was
established
to replace the existing state agencies for Maori. The enacting
legislation
for the new ministryfocussed on addressing the special needs
of
Maori while ignoring their Tiriti right to te tino rangatiratanga.
Indeed the Tiriti is not mentioned in the legislation. It has done
little
more than restructure the previous bureaucracies to promote the
governments
own agenda.The new ministry did not develop any new programs
and
those which it inherited were immediately transferred to mainstream
government
departments. Funding for 'Vote Maori Affairs' was slashed and massive
staff
lay-offs followed. The ministry is not able to effectively monitor the
way in which other government departments seek to meet the needs of
Maori.
It has been reduced to providing general policy advice on matters
affecting
Maori.A Ministry of Maori Development publication
commissioned
by kaumatua advising the ministry, which dealt with Maori leadership
and
government decision making, was withdrawn from circulation at the
beginning
of 1993 on order of the minister, because it was critical of government
methods of negotiating with Maori. The activities of the ministry will
clearly be reined in unless they reflect the views of the government.
The
ministry has increasingly been assigned a carefully prescribed role of
limited effect and has seriously underspent its budget.Meanwhile government has been pursuing its reform
and
restructuring agenda encompassing housing, education, health, welfare,
and electricity distribution. Benefit cuts were made unilaterally with
a disproportionately negative impact on Maori. Health reform
legislation
reflects a lack of consultation with Maori. Maori have felt excluded
from
restructuring in the electricity distribution sector. Bulk funding of
teachers
has been deemed detrimental to Maori education. Restructuring in the
Housing
sector has taken it outside the State Owned Enterprises Act with its
provision
for the Waitangi Tribunal to make binding decisions in the case of
disputed
assets. Enabling legislation for the reforms typically makes no
reference
to te Tiriti o Waitangi, much less the Maori right to te tino
rangatiratanga.

Early in its term of office government
declared a goal
of settling all Treaty claims by the year 2000. Late in 1992 the
government
was presented with a means of putting an end to fisheries claims
through the Sealord deal. All Maori claims over commercial fishing are
now deemed to be fully and finally settled. No case can be tested
either
before the courts or the Waitangi Tribunal. So the Sealord deal cannot
be challenged. Traditional Maori fishing rights were protected under
section
88 (2) of the Fisheries Act which has now been repealed. Such rights
will
now be the subject of regulations determined by government. Tiriti
fishing
rights have been redefined to mean a share in a commercial fishing
company
driven by profit and which might have some trickle down benefit for
some
iwi, and the right to be consulted over various fisheries management
decisions
on the government's terms. Consultation will be with persons the
government
deems appropriate, with the government making up its own mind in the
end.
The Sealord Deed of Settlement was never the subject of proper
consultation
with Maori. Much of it was deemed commercially sensitive and therefore
unable to be discussed with iwi. The bill finalising the deal was
rushed
through parliament under urgency, thereby preventing debate before a
select
committee. Maori have clearly been denied their tino rangatiratanga
with regard to fishing.The latest scheme to achieve the governments
election
promise involves what are called fiscal envelopes. It is
understood
the government will divide up the country into regions (not based on
tribal
boundaries), and set a sum which it is prepared to pay to settle claims
in each area.Government and Treasury will be the only
ones
to know how much is in each envelope. The Government will assess the
extent
of the grievance of each tribe in each region and offer compensation.
So
different claimants within each region will be made offers according to
what government has in its envelope. Given the make up of the
National
Cabinet and its commitment to budgetary restraint, Maori
claimants will again be asked to accept less than just settlements
and to scrap over the crumbs government allocates to each envelope. It
is also the governments desire to introduce a claims cut-off date.
Claims
relating to last century that are not registered with either the
Waitangi
Tribunal or the Crown by June 1996 will be ignored. Meanwhile the
government
will claim it has acted in good faith, has demonstrated financial
responsibility
and has complied with its election promise. Any failure of the policy
will
be blamed on Maori. Sealord revisited?There has been an increasing desire by government
to
settle treaty claims by direct negotiation. The latest instance
is its 'land bank' proposal, whereby surplus Crown properties will be
held
for use in Maori land claims settlements. Iwi claims on surplus
property
are to be lodged with a new Crown/Maori Congress working group. Once
that
property has been placed in the land bank it must be used in settlement
of that iwi's land claims. The Treaty of Waitangi Unit within the
Justice
Department has major input into direct negotiation.The
considerable
resources at its disposal are in marked contrast to those available to
iwi,
who are constantly at a disadvantage in the direct negotiation process.The government has sought tofast track
some Maori
claims in its own interest e.g. Railways land. Increasingly such
negotiations
have been held with the Maori Congress to which not all iwi belong. The
government with all its resources clearly has the upper hand. The
National
Government like its Labour predecessor has no commitment to tino
rangatiratanga.
Crown sovereignty has been deemed to be paramount.

Tino
Rangatiratanga
and Maori DevolutionThe Labour Government's proposal for Maori
Affairs devolution
started from the premise that article two of Te Tiriti o Waitangi only
placed a responsibility on the government to protect Maori interests
and
where necessary redress grievances. It was proposed that iwi
organisations
would administer programs for Maori under rules set by government.
While
Maori supported the devolution of resources and authority to the iwi,
they
questioned government control of the process.Labour's Runanga
Iwi
Act was widely rejected as not recognising te tino rangatiratanga.The National Government dropped Labour's policy
and repealed
the Runanga Iwi Act. The 'Ka Awatea' report saw devolution as the right
to self development. Although falling short of self government, taken
seriously
this could at least have put an end to the divide and rule approach
arising
from Labour's policy. However, the government's handling of the Sealord
deal together with its fiscal envelopes policy, has dashed that
possibility.Iwi may obtain government funds to deliver and
monitor
government services to Maori. The Ministry of Maori Development is able
to contract with iwi to do this. However, the terms are those deemed
appropriate
by the government. Maori delivery agencies will always be kept on a
string.
The danger remains that government schemes will distract iwi from
focussing
on their Tiriti right to te tino rangatiratanga.Tino rangatiratanga has not featured in either
Labour's
or National's devolution proposals.

Tino
Rangatiratanga
and the CourtsFrom 1840 till 1988 both the legislature
and the Courts had ignored the Treaty of Waitangi.
In 1877 Chief Justice James Prendergast declared the Treaty to be a
"legal nullity". Since it had not been written into legislation, it
was of no consequence to the Courts. This was the position of the
Courts
for more than a hundred years.When in 1987 the Labour Government set about
passing
the State Owned Enterprises Bill, the Waitangi Tribunal drew its
attention
to the fact that it took no account of the need to address Treaty of
Waitangi
concerns. As a result a clause was added stating that nothing in the
Act
shall be inconsistent with the principles of the Treaty. The Bill was
then
passed.Subsequently the Maori Council brought a case
against
the Government. This case and subsequent cases involving fishing,
forests
and coal, have been acclaimed as victories for Maori. However, their
implications
for tino rangatiratanga were quite serious. The Court of Appeal
avoided
the Treaty guarantee of tino rangatiratanga.It
seized
upon the reference of the S.O.E. Act to the principles of the Treaty
which
it said involved the 'spirit', of the Treaty (rather than its words)
adapted
to the present day changed circumstances. Partnership based on
reasonableness
and good faith, it said, was the essence of the Treaty. The Government
was recognised as having sovereign power to govern. While it had a duty
to take into account Maori Treaty rights, and if necessary to consult
with
Maori; the final decision, the Court said, remained with the
Government.
Further, Maori were to be loyal to the Crown, recognise the Government
and be reasonably co-operative. The Court of Appeal confirmed two
things:
Crown sovereignty and Maori subordination.When the Government demonstrated reluctance to
consult
Maori over privatisation of State Forest and Coal Corp, Maori went back
to court. While the Court found in favour of Maori, all that Maori
secured
was a promise to return assets if in the future the Waitangi Tribunal
ordered
it to do so. The Court stated that partnership did not mean equal
division
of assets or resources. Later in the case of the Maori Fisheries Act
(1989)
it was stated that legislation may well provide a sufficient expression
of traditional Maori fishing rights in present day circumstances.The effect of recent Court findings has been to
seriously
undermine the bargaining power of Maori in negotiations over the
government
assets and resources. The Treaty has been reduced to terms compatible
with
Crown sovereignty. Tino rangatiratanga simply does not have a place so
far as the Courts are concerned.

Tino
Rangatiratanga and the Waitangi TribunalWhen the Waitangi Tribunal was established it was
seen
as a source of hope by Maori. However, it was later to become clear
that
it wasestablished under Crown supremacy, not tino
rangatiratanga.
It could only recommend solutions to Maori grievances.Maori
Treaty
rights were still dependent on the goodwill of the Government. Tribunal
members were Government selected and they were required to consider not
the Treaty but the principles of the Treaty.In its early years, however, the Tribunal's
reports
stressed the belief that Maori would never have ceded their sovereignty
as
successive governments had deemed they had. Kawanatanga was defined as
something less than rangatiratanga and the challenge of rangatiratanga
to Crown sovereignty was upheld. But following the S.O.E. court
case the Tribunal made a dramatic turn around on the crucial question
of
tino rangatiratanga or sovereignty. The Court of Appeal stated that it
would determine what the principles of the Treaty were. While the views
of the Tribunal might be of assistance to the Court, they were not
binding.
Only the Court's findings could be binding and it stated "should be
followed
by the Waitangi Tribunal as a declaration of the highest judicial
tribunal
in New Zealand". The Tribunal was now bound by the Court of Appeal's
findings.In its subsequent reports on claims, the Tribunal
began
to state that a cession of sovereignty had taken place with the signing
of the Treaty. By August 1988 the Tribunal was writing about a cession
of [Maori] sovereignty and Pakeha settlement rights that cannot now be
denied". The Tribunal was now a mechanism to deny tino rangatiratanga
and uphold the Court's Treaty principles.The Tribunal had now
been
pulled back into the mainstream Pakeha legal system. The judiciary had
successfully undermined the work of the Waitangi Tribunal.In February 1993 the government introduced into
parliament
the Treaty of Waitangi Amendment Bill which provided that the Waitangi
Tribunal shall not recommend that the crown acquire ownership of
any
land or interest held by any person. This was quite unnecessary as
the tribunal can only make recommendations that the Government is quite
free to ignore, except where a private owner has bought State Owned
Enterprises
land with full warning of the (remote) risk of resumption if the
Tribunal
so orders. This action makes it clear that the tribunal is an
instrument
of the crown that will be reined in should it be seen to threaten crown
interests.Despite protestations to the contrary it is clear
the Waitangi Tribunal is being increasingly marginalised by
government.The
governments desire for direct negotiation with iwi, its land bank and
fiscal
envelopes policies, together with the suggestion of a cut off point for
the lodging of claims, are all evidence of a sidelining of the work of
the tribunal. Under the present government the Waitangi Tribunal is
struggling
to retain a significant role for itself. This is reflected in recent
comments
by the Chairman of the Waitangi Tribunal. Judge Durie has indicated
that
the tribunal may have run its course such that direct negotiation
between
iwi and the Crown may now be the way ahead.

Tino
Rangatiratanga and the Principles of the TreatyIn recent years there has been a concerted effort
to
focus discussion not on the Treaty of Waitangi, but on the principles
of the Treaty. TheWaitangi Tribunal has always operated on the
basis of defining Treaty principles. The Labour Government legislated
for
principles of the Treaty in the Treaty of Waitangi Act, and in the
S.O.E.
Act. The Court of Appeal has enunciated its principles of the Treaty
which
are now binding on all levels of the judiciary. The Labour Government
too
produced its own set of principles.In its 'Principles for Crown Action of the
Treaty
of Waitangi', the Labour Government established a "kawanatanga
principle"
and a "rangatiratanga principle". The so-called kawanatanga
principle
reaffirmed the notion of cession of sovereignty by Maori and assumed
that
they gave up their right to self determination. Both of these have been
constantly refuted by Maori. The so-called rangatiratanga principle
redefined
rangatiratanga as a concept of resource management which excludes ideas
of social, economic or political power for Maori. Others of these
principles
limit rangatiratanga to a power subject to the authority of the Crown,
require reasonable co-operation with the Crown and justify the
imposition
of English Common Law as a basis for equality. In other words,
recognition
of tino rangatiratanga is strenuously denied.The National Government decided to rewrite
Labour's set
of Treaty principles so that they would conform with its policy and be
more explicit. Kawanatanga now referred to the governments
'right
and responsibility to govern for the common good'. Rangatiratanga
became 'restoration of iwi self-management within the scope of the
law'.
These attempts to restate the Treaty have been part of a process toward
the settlement of iwi claims. However, such claims are based on Te
Tiriti
and not Crown defined principles. The outcome is that te tino
rangatiratanga
is still strongly denied Maori.

The Need
for Constitutional
ReformAttempts to have tino rangatiratanga
recognised by
the Crown and the Courts have failed. This has enforced Maori
dependency.
But the struggle goes on. What is required in these days is a
process
of political or constitutional reform which recognises that Maori have
an inherent right to their tino rangatiratanga.To achieve this
the supremacy of Crown sovereignty must be relinquished so that we
can recognise two co-existing constitutional entices within one nation,
one representing tino rangatiratanga and the other representing
kawanatanga.
These two entities must of necessity exist in a new Treaty based (Maori
Version) relationship with each other.The church leaders have recognised the need
for this. In
their 'Statement for 1990' they asserted, "We believe there needs to be
a political restructuring which recognises Maori as a people possessing
te tino rangatiratanga according to the Treaty". In September 1990 Te
Runanga
Whakawhanaunga I Nga Hahi (the Maori Ecumenical Council) called "to all
Maori and to all people of goodwill" not to vote in the October General
Election because of 150 years of injustice in denying te tino
rangatiratanga.
They also stated it would not be difficult to establish a
constitutional
forum to resolve Treaty issues, such as te tino rangatiratanga, through
dialogue and negotiation and indicated that they would be willing to
contribute
a draft proposal for such a process.In 1986 the Royal Commission on the
Electoral
System which recommended a change to proportional representation
had urged
government to enter into consultation with Maori about the definition
and
protection of the rights of Maori and their constitutional position
under
the Treaty of Waitangi.While government has pressed on
with
a referendum on proportional representation, it has ignored the
recommendation
on Maori constitutional rights.Last September's indicative referendum, on
electoral
reform, resulted in considerable Maori comment. While some still see
proportional
representation as offering a better deal for Maori than the present
system,
it is not based on tino rangatiratanga. For this reason both the Maori
Council and the Maori Congress urged a boycott of the electoral
referendum.
The council's view was that there was nothing in it for Maori. The
congress
spoke out in favour of self government and a Maori parliament.The latest round of hui to 'consult' with Maori
on electoral
reform demonstrated the governments superficial commitment to and
expediency
in manipulating Maori views on electoral reform. It looked like the
Sealord
process once again?A Tiriti analysis suggests that no form of
proportional
representation reflects Tiriti rights and the guarantee of te tino
rangatiratanga
to Maori. It remains an expression of kawanatanga. The Methodist
Conference
of 1992 stated: "believing the September referendum on proportional
representation
was premature...Conference supports all efforts to hold a
constitutional
review hui early in 1993." The need for such a hui has become urgent.As we approach the binding referendum on
multi-member
proportional representation together with the proposal for an upper
house
(not fifty/fifty based) as well as voting in the general election, we
need
to be alert and sensitive to the voice of Maori and any further call
they
may make.

AcknowledgementsIn the preparation of this paper the analysis of
Jane
Kelsey, together with that of Moana Jackson and Moana
Maniopoto-Jackson,
John Salmon, and Kia Mohio Kia Marama Trust, has been particularly
helpful
and is here gratefully acknowledged.

Bibliography

Jackson, Moana 'The Crown, The Treaty and
the
Usurpation
of Maori Rights' in Proceedings of Aotearoa New Zealand and Human
Rights
in the Pacific and Asia Region: A Policy Conference 1989.

Kelsey, Jane A Rolling Back the State:
Privatisation of Power
in Aotearoa New Zealand Bridget Williams Books 1993.